Archive for February 2013
Americans have always hated bureaucracy. One of the charges against King George III in the Declaration of Independence was that he “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Who wants to be ruled by a national DMV? It is costly, inefficient, and, well, bureaucratic.
“It is not by the consolidation, or concentration of powers, but their distribution, that good government is effected,” Jefferson warned. “Were we directed from Washington when to sow, and when to reap, we should soon want bread.”
The Founders certainly understood the need for the good government administration, but the administration was subordinate to the president, and thus indirectly responsible to the people through election. In Federalist 68, Alexander Hamilton (who liked government more than almost any other founder) called it a “heresy” to suggest that of all forms of government “that which is best administered is best.”
The United States has been moving down the path to socialized government in fits and starts for over a century, but the real shift and expansion occurred under the Great Society and its progeny. The expansion of regulatory activities on a society-wide scale in the 1960s and 1970s led to vast new centralizing authority in the federal government, such that today the primary function of government is to regulate. The modern Congress is a supervisory body exercising oversight of the true lawmakers — administrative policymakers. It is in this model Americans are trapped today. Everything — from financial restructuring to environmental regulation to immigration reform — must be dealt with comprehensively, meaning centrally and uniformly, based on the best science rather than politics and ideology.
The “health-care reform” legislation just enacted is the perfect example. Massive regulatory authority over one-sixth of the American economy, not to mention over most health-care decision-making, are being transferred to a collection of more than 100 federal agencies, bureaus, and commissions, along with new federal programs and an unprecedented delegation of power to the now-über-czar Secretary of Health and Human Services. Little or nothing will be allowed outside the new regulatory scheme — no alternative state programs, no individuals or businesses that choose not to participate, no truly private market alternatives.
If Obamacare becomes settled law, and its programs are fixed in place, it will go far in cementing the United States as a post-constitutional administrative state.
In assuming more and more tasks in more and more areas beyond its constitutionally prescribed responsibilities, modern government has done great damage to American self-rule. The extended reach of the state, fueled by its imperative to impose neutrality on the public square, continues to push traditional social institutions into the shadows of public life, undermining the moral fabric of America’s culture and civil society.
As a people, we have become habituated to expect government to solve not just social problems but personal ones, removing all risk from life and providing for all our needs and many of our pleasures. Individuals now look to government to relieve their most ordinary concerns, support their basic endeavors, and compensate them for the simplest injuries they suffer in daily affairs. There are Darwin Award winners who actually call 911 when McDonald’s gets their order wrong. All these demands are considered to be rights, and the list is ever-expanding.
By feeding the entitlement mentality rather than promoting self-reliance and independence, administrative government encourages a slavish character incompatible with republicanism. Previously self-governing citizens are degrading themselves slowly into passive subjects of an impersonal, bureaucratic nation-state, and once citizens have given up liberty for comfortable security and the responsibility of self-government for the ease of government-as-parent, democratic government can become a type of soft despotism — which is less coercive in its methods and more benign in its concerns than a totalitarian regime, but perhaps more despotic for this very reason – we don’t buck against it because the loss of liberty is subtle – until it’s too late to resist because we’ve lost our liberty.
The Left long has tried to persuade Americans that the rise of the Progressive state was inevitable and permanent. Yet a growing body of evidence, from tea parties to the still-majority opposition to the health-care law, suggests the question has not been settled — at least not by the American people. A recent Rasmussen survey found:
- 75% of Americans are angry about the policies of the expanding federal government
- 71% view the government as an interest group,
- 61% believe the government does not represent the consent of the governed, and
- 53% view the federal government as a risk to their personal liberty.
The debate between the Founders’ constitutionalism and the Progressive paradigm meant to replace it is now engaged in the American mind as never before. Over the next months and years, and the next few elections, the matter will be decided, perhaps definitively, one way or the other.
Either the party of the modern state will unify its control and solidify its centralized model of government, or a new coalition of its opponents — unified by a healthy contempt for bureaucratic rule and a determination to reassert popular consent — will gain control of the political institutions of government and begin the difficult task of restoring real limits on government.
Will we become subjects of the administrative state or citizens of a free republic?
Shell is suspending exploratory drilling in the Chukchi Sea. Bad news for Alaska, bad news for the country.
At stake is around 26.6 billion barrels of oil. For perspective, the Trans-Alaska Pipeline has transported 16 billion barrels to Valdez over its 35 year history. Since the US Geological Survey likely underestimated the oil reserve, we’re talking something around two to two-and-half times the amount of oil that the TAPS has transported so far from Prudhoe Bay.
Shell had an excellent window of opportunity for drilling in 2011, but the EPA held them up over air quality concerns. All the permits were in place, but an environmental group filed a protest over air quality in a village nearly 50 miles from the drill site — a village where most of the residents were hoping to get jobs on the drill rig. For those unfamiliar with the Alaskan North Slope — it’s really WINDY there. Air quality is very rarely an issue. But, the protest delayed the exploratory drilling by a year and forced Shell to substitute the Kullak in order to meet the air quality standard required. It’s a stupid drill rig. It’s round. Completely unsuited for Alaskan maritime conditions. It couldn’t handle the ice in the spring and it couldn’t handle the heavy seas in the fall.
So now there’s 30 billion barrels of oil stranded in the Chukchi Sea and the environmentalists want it to stay that way.
And people wonder why Alaska keeps circling back to the secession discussion. Really? You don’t know why we’re thinking that way? Amazing!
There’s a lot more to this story than meets the eye. We’ve had quite a few FBI “informants” working in Fairbanks over the last couple of years. Why? Maybe because Alaskans have always complained about the federal government and so they see us as a threat that needs to be controlled. Shaefer Cox ran his mouth too much with the encouragement of an FBI informant and now he’s doing 25 years in federal prison. Guy Manino maybe had some encouragement to make this huge fire cracker and an FBI informant apparently told the police he set off the blast.
Let me be clear — Mr. Manino was an idiot for setting off this blast. We felt it at our house 12 miles away. Houses were damaged and Mr. Manino should pay for the repairs. That’s NOT the story.
The story is that an Alaska grand jury actually returned a no true bill on an indictment. I don’t know when was the last time that happened. Regular juries acquitting because they don’t agree with the law being prosecuted has been going on for 20 years, but the grand jury usually rubber-stamps whatever the prosecutor charges. Not this time.
Kathleen “Mike” Dalton, a long-time Alaskan politician, once observed that “The pendulum swings. Just when we think the current course is set in stone, it starts back in the other direction.”
I’m not an optimist. I believe we’re in a bad situation and things could and probably will get worse. But there are glimmers of hope now and then — signs that some people either haven’t drank the koolaid or are starting to sober up from drinking it.
Today it’s Fairbanks Alaska and a grand jury recognizing the prosecutor overreached on a charge, tomorrow maybe it will be something far more significant.
The administrative state presents us with a fundamental choice:
1) Do we want to live under a government of laws, or
2) Will we continue our slide toward a government of men?
3) Do we want a government that rules by the consent of the governed through elections and representation, or
4) Will we continue to delegate our power of self-government to unelected and unaccountable experts in faraway places so that they can administer our lives for us?
The administrative state has caused a constitutional crisis that must be confronted. Today’s agencies violate the separation of powers by combining legislative, executive, and judicial functions in the same hands, and they violate republicanism by vesting those powers in unelected and unaccountable bureaucracies.
We can develop a constitutional strategy to rein in the administrative state and subject it to the constitutional protections devised by our Founders. We have an opportunity to achieve the restoration of our constitutional principles and preservation of what makes our country so great.
Reforming the administrative state is not a utopian project and should not be an unpopular political aim. The administrative state is an assault on constitutional principles of government by consent, the separation of powers, and the rights of individuals. These are values both liberals and conservatives say they hold dear. The rise of unchecked bureaucracy that exercises arbitrary control over citizens should be alarming for anyone who values their own liberty.
Reforming the administrative state does not require a return to laissez-faire, unregulated capitalism, nor does it entail the dismantling of the federal government or federal administrative agencies. The legitimate need for regulation and administration can and must be made consistent with our constitutional principles.
Reform must be grounded in a proper understanding of these principles, not in the hope of immediate short-term gain or narrow self-interest. If we begin from constitutional principles and clearly communicate those principles and their relevance to the public, the suggested reforms are attainable. Americans must work together to forge an alternative to the administrative state so that we preserve our freedoms for future generations.
Nothing shows the problem of the administrative state as much as the Supreme Court ruling on health care. The Constitution is fairly clear that the federal government cannot regulate non-activity; clear enough that precedent has always ruled against it. That SCOTUS ruling was a shock to most who have read the Constitution, but it merely was a symptom of the increasing growth of the administrative state.
By law, Congress defines the scope of judicial review of administrative decisions, but since the creation of administrative state, the scope of judicial review of administrative decisions has become quite limited. The courts have adopted a deferential position in the face of agency actions. In fact they have an important role to play in restoring the rule of law and preserving the rights of individuals against potentially arbitrary and capricious administrative action.
Congress should consider revising the law to create more rigorous standards of judicial review of administrative decisions. Once parties affected by administrative decisions finally navigate the internal agency appeals process and reach an independent judge, Congress could ensure that the judge would review the decision rigorously. They should not have the option to give the agency the benefit of the doubt when its decision is under review in court.
Congress should ensure that agencies’ interpretations of their own laws are heavily scrutinized by reviewing courts. This would subject the administrative state to the check of judicial review, restoring some semblance of separation of powers. Judicial scrutiny of administrative policymaking has been on the rise over the past few decades, but it has occurred largely on the initiative of the judges themselves through expansive interpretation of certain provisions of the Administrative Procedure Act.
Congress could revise the Administrative Procedure Act to reiterate that reviewing courts can determine all issues of legal interpretation without any deference to the agency or department under review.
Congress could apply these standards for judicial review across all agencies and departments or only for certain types of administrative actions such as informal rulemaking, interpretative rulemaking, and issuance of policy statements and guidance documents. Using these less formal ways of crafting rules that have the force of law, agencies often issue vague rules and then explain those rules to regulated parties by issuing memos and opinion letters to them. Congress can require that courts reviewing such informal decisions by agencies be subject to expedited judicial review, meaning that affected citizens could go to an independent court without exhausting internal agency appeals.
When agencies know they will not receive deference from a reviewing court for using informal procedures such as opinion letters, guidance documents, and interpretative rules to make policy, they will have greater incentives to employ the normal procedures for rulemaking that are set-forth by the Administrative Procedure Act.
To assure judicial expertise in the review of administrative policymaking, specialized courts could be established in the most complex areas of policymaking to enhance judicial expertise, similar to the specialized jurisdiction Congress gave the Federal Circuit Court over patents, trademarks, and international trade disputes.
These reforms could be used as incentives to encourage agencies and departments to follow adequate procedures before making decisions that affect citizens and regulated companies. This would go hand in hand with Congress’s restoration of the formal rulemaking process originally envisioned by the Administrative Procedure Act. Adjusting the scope of judicial review of agencies in these ways creates procedural protections from arbitrary decisions and checks administrative action by subjecting it to judicial oversight.
The courts can help to check the administrative state by embracing their traditional function of reviewing decisions made by administrators to ensure that those decisions are consistent with the rule of law and due process. Congress should restore the function of adjudication to the courts as much as possible and define the courts’ scope of review of administrative decisions to restore some semblance of checks on the administrative state.
The constitutional crisis provoked by the administrative state demands a thoughtful, principled, but also practical response. The ideal solution is for Congress to make the laws itself rather than delegating that power to agencies and departments. Yet there are other options for improving the situation. Enhancing presidential control of the administrative state and expanding the scope of judicial review of at least some administrative decisions while eliminating waivers and transferring the power of adjudication to independent courts would begin to rein in the administrative state so that the constitutional rights of the public are protected.
This is the third incident in as many days. Are home invaders and shop robberies especially moronic in Texas?
Shop owner shoots at robbers
How many of these stories are buried out there?
There sure seem to be a lot of these incidents lately. If the current gun control fever goes the way the feverish want, there will be a lot more because criminals don’t follow laws. So I think it’s important to get this information out into the public so that people will know — guns are used all the time to protect gunowners and their families and NO, they’re not often used wrongly. That’s media manipulation and not actual truth.
” HICKORY, N.C. – A Hickory man is grateful to be alive after he said an intruder broke down his front door, and tried to beat him and rob him Saturday morning.
Paul Ohle said he was in his kitchen around 9 a.m. when he heard his front door being kicked in. Ohle said the man called for help, but as Ohle reached for his phone, the man wrestled it out of his hands.
Ohle now has nearly a dozen staples on the top and side of his head where he was beaten.
“I was fighting for my life,” he said.
Ohle said he finally broke free and ran to his bedroom, where he grabbed a revolver and shot the man to death.
“I hate I had to do it,” he said, “but I shot him.” “
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